Analysis of and commentary on South African politics from a liberal perspective. Winner: Best Political Blog 2012.

Affirmative Action and academic appointments

by The Editor

FEATURE: In a piece focused on academic appointments, Adv Mark Oppenheimer – a DA Young Leader – looks at affirmative action in its various forms and how each relates to the idea of justice, before concluding that only equal opportunity affrimative action can be described as a truly just remedy in overcoming past injustices. Affirmative Action has been in the news lately for a number of different reasons, from UCT’s admission’s policy to the Department of Correctonal Services’ new employment equity plan. The arguments Mark addresses and disproves are important and the relationship he focuses on – between redress and justice – critical to both this issue and South Africa’s development more broadly.

I look forward confidently to the day when all who work for a living will be one with no thought to their separateness as Negroes, Jews, Italians or any other distinctions. This will be the day when we bring into full realization the American dream — a dream yet unfulfilled. A dream of equality of opportunity, of privilege and property widely distributed; a dream of a land where men will not take necessities from the many to give luxuries to the few; a dream of a land where men will not argue that the color of a man’s skin determines the content of his character; a dream of a nation where all our gifts and resources are held not for ourselves alone, but as instruments of service for the rest of humanity; the dream of a country where every man will respect the dignity and worth of the human personality. Martin Luther King, Jr.

Introduction

Every philosophical inquiry must begin with a clear account of the key concepts that are to be discussed during the course of that inquiry. In order to set the parameters of this paper I will begin by defining the terms justice and affirmative action. I will then proceed to examine two contrasting accounts of affirmative action and assess whether either version is unjust. I will engage in a separate enquiry to determine whether affirmative action yields positive consequences. My focus will be narrowed by limiting my discussion to affirmative action in the context of academic appointments in South Africa. Some of the conclusions that I draw will be applicable to affirmative action in other contexts, but this will not necessarily be the case for all of my conclusions.

The concept of justice is firmly tied to the principle of treating individuals in a manner that is in accordance with what they deserve. For example individuals that work hard deserve to be rewarded for their efforts, while those that perform wrongdoings deserve to be punished. In addition to taking the notion of desert into account, a proper understanding of justice must also be rooted in the value of equality. Enlightenment philosophers, like Kant and Hobbes, were committed to the position that people are endowed with equal rights.[1] Paying due regard to equality does not require one to treat all people in exactly the same way. It requires us to treat like cases in the same way, but it also requires us to take the different needs and abilities of people into account when deciding how to treat them equally.

This means that differential treatment must be based on morally relevant considerations. Take a case where there are two candidates eligible to receive an award for being good citizens. The first candidate gives to charity, takes care of the elderly and feeds the homeless. The second candidate vandalizes public property, cheats on his tax returns and beats up his wife. The virtuous behavior of the first candidate constitutes a morally relevant reason for treating him differently to the second candidate and giving him the award.

Sexism is wrong because it involves arbitrary discrimination on the morally irrelevant basis of sex. Similarly treating people unequally because of their language, religion, race or sexual orientation is unjust because none of those features are morally relevant reasons for differential treatment.[2]

Justice demands doing the right thing, but this will not always result in the best possible consequence being produced. A utilitarian account of justice collapses the distinction between the right and the good, since the right action is the one that produces the best results. On this account justice is served by maximizing good consequences, which is essentially forward looking. The account of justice that I will use in this paper will be primarily concerned with backward looking considerations and present considerations.

The nature of affirmative action policies

Affirmative action (AA) policies tend to be concerned with the goals of compensation, correction and diversification. Compensation is a backward looking concern that strives to remedy the injustices of the past. Correction is concerned with eliminating policies that are presently discriminatory. Diversification aims to produce a society that is multicultural.[3] This aim is different from the first two, since it aims at producing a state of affairs that is thought to be good. It is therefore not related to concerns about justice, but rather about positive consequences. AA policies aim to achieve the aforementioned goals by either being race neutral or by placing some weight on the basis of race.

AA policies that give some preferential weight on the basis of race take three major forms. Firstly, tie breaker AA operates in situations where two candidates that are equally qualified are up for the same position, but the person of the preferred race is chosen over the other one. Secondly, strong-preference AA accords significance to candidates of a preferred race by choosing them over candidates of other races even if they are less qualified for the position. The stronger the preference for the particular race the less qualified the candidate needs to be to in order to be hired. Thirdly, set asides work by designating certain positions for candidates of a particular race, while disallowing candidates of other races to obtain the position.[4] Set aside policies were commonly used during apartheid since many positions of power in business and government were set aside for “whites”.[5]

Affirmative action in South Africa

Race preference AA policies aim to redress the injustices of the past. “Black” South Africans were heavily discriminated against by the state on the arbitrary basis of race. They were forced to endure untold humiliations and many were deprived of the opportunity to receive adequate education or work in careers of their choosing. It is of the utmost importance that the wrongs of the past are corrected and that as far as possible those individuals that were harmed are compensated. It is argued that by using race as a proxy for disadvantage, the injustices of the past can be remedied by giving preferential treatment to “blacks”.[6]

This is troubling for a number of reasons. Firstly, in the case of academic appointments race is not a good proxy for disadvantage. In order to become an academic one must first have met certain educational requirements, like the possession of a doctorate. This means that the vast majority of “blacks” that were denied an education because of the racist policies of the past, are not eligible to become academics. Those “blacks” that were able to obtain doctorate degrees, were by definition not deprived of an education.[7] They may have had more obstacles to overcome in order to obtain their degrees, but discrimination did not prevent them from obtaining them. These individuals may have suffered humiliating forms of discrimination, like not being allowed to visit whites only beaches, but they were not discriminated against in a manner that is relevant to being appointed as an academic. We do not think that the way to compensate other victims of humiliation like those that have been raped or defamed is to give them preferential treatment in the workplace; there are other forms of compensation that better suit the harms that they suffered.[8] The result of the policy would be to confer a benefit on a candidate that did not deserve to be compensated in the form of preferential hiring. Since justice demands treating people as they deserve to be treated, the policy is unjust in this respect.

Secondly the policy fails to compensate those that have suffered an injustice but are not part of the preferred racial group. All people that have been unfairly disadvantaged in the same way by being deprived or persecuted are equally deserving of compensation, regardless of the colour of their skin. If only a portion of those that were disadvantaged are given compensation because of their skin colour then those that were not given compensation could rightly claim that they have been treated unfairly.[9] It may be the case that the majority of those that were disadvantaged fall into a particular racial category, but this not a good reason for ignoring the claims of the minority.

Thirdly, those “white” candidates that deserve to be hired by universities but are prevented from being hired because of the race preference policy are being unjustly discriminated against. Their equal right to employment is set aside on the arbitrary ground of race.[10] Since there are a finite number of positions available in a university, there is a direct connection between hiring candidates because they are of a preferred race and depriving “white” candidates of work because of their race.[11] It would be inappropriate to claim that “whites” were receiving some form of just punishment for wrongs they committed in the past. Many of them played no role in the perpetuation of Apartheid and some of them actively fought against the racist policies of the past.

Despite the fact that AA based on racial preference is unjust, it may be argued that it ought to be made use of because it yields good consequences. One of the major claims in favour of the policy is that it creates diversity which is either intrinsically good or good because of the results that it produces.

A racially diverse range of staff may be aesthetically appealing, but once it is acknowledged that the colour of a person’s skin is as irrelevant as their height or hair colour, it becomes evident that there is nothing intrinsically valuable about it.[12] It may be argued that racial diversity is valuable because it leads to a diversity of opinions.

Providing room for a diversity of beliefs and opinions brings with it immense benefits. It allows for intellectual, cultural, artistic and scientific progress whilst provoking discussion and aiding the search for truth. Since we are not infallible we cannot know with certainty that a particular opinion is false. When we suppress opinions that are believed to be false we risk missing out on the truth.[13] By stifling beliefs that are different from our own we lose the opportunity to “challenge, reconsider and perhaps reaffirm”[14] our own views.

When people are exposed to a range of conflicting opinions on a subject they are given the opportunity to exercise their rational faculties, weigh up the arguments on both sides and come to form their own view on the matter. Engaging in this process is fulfilling because it is an exercise in autonomous opinion formation.[15] Furthermore it helps people make informed and legitimate decisions about both their political and private lives.[16]

However it is far from clear that hiring staff that are racially diverse will ensure that those staff members hold a diversity of opinions. The assumption that all black people think in a particular way and that the opinions that they hold are fundamentally different to the opinions held by members of other racial groups is an absurd form of racial stereotyping. First of all it is possible for people from different racial groups to hold the same opinion on a matter. It is also possible for members of the same racial group to hold radically different views.[17] The old adage that if you put two Jews in room you get three opinions illustrates the point that there is no connection between a person’s race and what they believe.

If universities genuinely wanted diversity of opinion then they would hire people on that basis. It is easy enough to determine a candidate’s views on a subject by examining the articles that they have written. Instead of focusing on race, universities would ensure that they hire enough Marxists, Libertarians, Feminists, Anarchists, Conservatives, Africanist’s, and Religious Fundamentalists to meet the requirements of diversity of opinion.

A further argument in favour of racial preference AA is the claim that members of companies and institutions ought to proportionally represent the racial composition of the rest of the population. This means that if 80% of the country is made up of those that have been designated as “Black”, then the same percentage of “Blacks” should be working in Universities. It is claimed that justice requires proportional representation on the basis of race and that an under representation of a particular race is evidence of injustice. The implication is that in a just world there would be a racially proportionate distribution in all sectors, including university lecturers. Proportional representation would require a readjustment of the current racial mix of lecturers working in universities.

However there is evidence to suggest that racial clustering in certain sectors is not necessarily connected to injustice. Industries are often dominated by particular racial groups because of particular preferences in those groups or through accidents of history.[18] In California ninety percent of the donut stores are owned by Cambodians, yet the number of Cambodians living in California is significantly lower than ninety percent.[19] Cambodians did not come to dominate the donut selling business because of discrimination against other racial groups and there is nothing unjust about them having a disproportionate share in the industry. If racial quotas were used then almost all of the Cambodians running donut stores would be forced to sell their businesses to members of other racial groups. This type of wholesale dispossession on the grounds of race smacks of the worst kind of racist social engineering.

Not only does race based AA fail to produce the good results that it promises, it produces results that harm the people that it aims to benefit. The policy undermines the achievements of those that belong to the racial group that the policy prefers. “It imposes upon every member of the preferred (race) the demeaning burden of presumed inferiority. Preferences create that burden; it makes a stigma of the race of those who are preferred by race. An ethnic group given special favor by the community is marked as needing special favor – and the mark is borne prominently by every one of its members. Nasty racial stereotypes are reinforced, and the malicious imputation of inferiority is inescapable because it is tied to the color of skin.”[20]

Blacks that are appointed to work at universities because they are the best qualified for the job, are still forced to carry the stigma that were only chosen to fulfill a quota. Instead of being recognized for their genuine talents and abilities, they are viewed suspiciously by their collogues, who are lead to believe that they were only appointed because they are black.[21] The following quote testifies to the anguish that many highly qualified blacks feel as a result of racial preference.

“You always want to believe that you were hired because you were the best… But everything around you is telling you you were brought in for one reason: because you were a quota…No matter how hard I worked or how brilliant I was, it wasn’t getting me anywhere. It’s a hell of a stigma to overcome.”[22]

In the realm of education, the policy acts as a disincentive for preferred candidates to do their best. The more that they are rewarded in the workplace for their race as opposed to their merits, the less reason they are given to develop their talents and strive for excellence when they are studying.[23] This has a knock on effect in university teaching. When less qualified candidates are hired to teach because of their race, students are placed at a disadvantage because they are deprived of the opportunity to be taught by those that are best qualified to teach. The quality of their educational experience and their capacity to achieve the best possible results are both undermined.

The preceding arguments should not be misinterpreted to imply that members of particular racial groups are inherently less qualified then members of other racial groups. Such a claim is racist and obviously false. The claim is simply that the more emphasis that a preference policy places on race, the less weight it places on merit. The same would apply if preference was placed on some other feature like height or hair colour.

In order to adopt a policy that takes account of race some form of racial classification must be used in order to determine who counts as “black” or “white”. Every person would have to be identified as being part of a particular racial group. Such a system would be undesirable since it would reinstitute the humiliating classificatory processes that were used in Nazi Germany and Apartheid South Africa. The classifications would often be arbitrary since people of mixed racial descent cannot be easily classified.[24]

Race preference requires us to ask a series of repulsive questions. In order to determine how benefits are to be allocated it must be decided how much “blood” from a particular race is required to be considered a part of that race. Is one black parent, grandparent or great grandparent enough to be considered black? Would the same test be used to determine who is white?[25] A clear line would have to be draw between those that would benefit from the preference and those that would not. But on what basis would such a line be drawn?[26] In Nazi Germany a person’s status as a Jew was determined by how much Jewish blood they had. Having one Jewish grandparent was enough to be sent off to a concentration camp. In South Africa would having one black grandparent be enough to secure a favorable position in a university?

Who gets to decide what racial group people belong to? If people were given the power to assign themselves to a race of their choosing the results would be inconsistent. Preferential policies would incentivise people to categorize themselves as being members of the preferred racial group. Given that the stakes will be high for people to prove that they belong to a preferred group, there will a lot of contestation among those that fall into ambiguous racial categories. The system would require administrators to engage in the same kinds of disgusting classification tests that were used in the past. “Race preference does this terrible thing to our community and ourselves; it compels us to do what the Nazis urged- to ‘think with our blood’.”

The following Boondocks cartoon illustrates how those in charge of deciding how people are to be classified will behave.

Race preference is at odds with the aim of non-racialism, since racial identity would be deemed as important under this regime as it was under the apartheid regime. Instead of seeing each other as fellow human beings, people would be inclined to think of each other in terms of race. This would hinder the noble goal of racial integration and encourage people to separate themselves into racial groups. Instead of creating a pluralist society where everyone can feel proud of their heritage, racial preference makes some citizens feel less worthy. It deprives those that are not given preference of an equal opportunity on the basis of the race that they were born into. “Preference by race yields disharmony, distrust and disintergration.”[27]

Conclusion: A just alternative

I have argued that race preference AA is unjust and leads to harmful results. It confers benefits on undeserving candidates, disadvantages candidates that are undeserving of being disadvantaged and perpetuates the humiliation of racial profiling. I will proceed to provide an alternative AA policy that avoids the problems associated with racial preference.

Equal opportunity AA is race neutral, but it is concerned with eliminating discrimination on the basis of race. “(It) involves taking positive steps to avoid discrimination, to ensure that opportunities are open and available to all and that fair standards of selection are used.”[28] In order to overcome a past wrought with racism and exclusion, the policy seeks to include members of all races. The policy endorses reaching out to marginalized groups and encouraging them to enter into professions that they were previously not a part of.[29]

Equal opportunity AA may require enormous effort on the part of employers. All of the insidious forms of discrimination must be rooted out of the hiring process and the workplace. For example if a university only advertises for lecturing positions in newspapers, which are predominantly read by “white” English speakers, then it can reasonably be claimed that it is discriminating against people of other races and languages.

The notion of what constitutes the best candidate must also be overhauled to eliminate bias against people with different racial and cultural backgrounds. In addition to academic ability, qualities like the ability to overcome disadvantageous obstacles should be taken into account. This means that if two candidates both achieved the same qualifications at similar institutions but the first did so while aided by privileged surroundings while the second did so despite the presence of discrimination and lack of opportunity, the second ought to be preferred on the basis of merit since she has the added ability of determination in the face of impediment. For example at the University of Berkley California results that were achieved in impoverished high schools, which were afflicted with drugs, gangs and crime are given greater consideration for admission, than results achieved at middle class schools.[30]

An employer would also bear the responsibility of creating a working environment that respected the specific needs of staff members that arose because of their culture, race or ability. Such a policy may require allowing religious members of staff to wear traditional dress on particular occasions, prohibiting the use of racial slurs in the workplace and addressing the mobility requirements of the disabled by building wheelchair ramps.

Equal opportunity AA meets the demands of justice by treating people as moral equals, who are all deserving of the opportunity to work in environments that afford them respect and do not undermine their dignity. It corrects the unjust practice of discrimination in the hiring process and the workplace. It must be concluded that this form of AA is not unjust.

Advocate Mark Oppenheimer is a member of the Johannesburg Bar and the Bridge Group of Advocates. He has represented newspapers that are threatened by defamation suits, individuals that were wrongfully arrested by the police and employees that have been unfairly dismissed.

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